A Baltimore police officer has been accused of planting drugs at a crime scene. The evidence against him is really strong; he left his bodycam running and if shows him planting the drugs.
But at this point, he is legally innocent. However, there are other people who have been arrested and are working their way through the trial system due to drug evidence this officer supposedly found. What are their options?
Their lawyers are presumably going to call the officer to the stand and ask him to testify on the evidence he declared he found in these other cases. But assuming he didn’t leave his bodycam running at every case, it’s going to be a question of his credibility. Can a lawyer for another case use the bodycam video as evidence to impeach the credibility of the officer’s testimony and create reasonable doubt?
Actually I think that the prosecution is going to have to call the officer to the stand in order to have evidence that the drugs were (supposedly) found.
Either way, the officer is presumably going to testify that he found the drugs during a legal search of the residence of the defendant John Smith.
Smith’s lawyer would like to say “You weren’t wearing a bodycam at the time you searched my client’s residence. But we have this video of you planting drugs at another person’s residence a week after you claimed you found drugs at my client’s residence. Based on that evidence, it’s very possible that you also planted the drugs you claim you found at my client’s residence. Therefore, the jury must have reasonable doubts that the drugs were my client’s and must find him innocent.”
But this line of argument only works if you can present the video as evidence. Hence my question.
I suppose the question will be - how likely is it that the cases in question could have been a result of planted drugs? If any of those three “found” the drugs during the arrest or search, it’s arguable they were planted. If some other, uninvolved officer found them, and it can be shown the problem officers were never in a position to plant them… they still have a case. However, it’s pretty easy to slip a small baggie anywhere during a walk-through of a house, so it’s an uphill climb for the prosecutor.
I don’t think it’s necessary to introduce the video, just ask the officer point-blank on the stand… do you deny planting drugs in a different case? How many times have you planted drugs? IIRC IANAL taking the fifth cannot be used to infer guilt when the defendant does it - but the judge and jury can make whatever they want of a witness taking the fifth related to a different case.
More interesting is what happens to cases already adjudicated. I assume a number will appeal based on this new evidence.
But to question credibility, you can ask the officer if he planted the evidence at issue in the current trial. Assuming he denies this, you can ask if he’s ever planted evidence. Sometimes that type of approach is barred as collateral impeachment, but here I think virtually every judge would allow it as relevant to the officer’s credibility.
And if he says he has planted evidence in the past, then he’s pretty well destroyed his credibility with the jury.
If he says he never has, then the video can be impeached to attack his credibility.
Either way, I doubt a prosecutor – even in Baltimore – would roll the dice with any case that rested on this officer’s field work.
The overwhelming majority of defendants are too poor to get legal representation. Their public defender is just there to transmit the plea offer and tell them to take it. And since bonds are set at ridiculous levels, if they want out of county jail they take it regardless of guilt, evidence, corruption.
All the people awaiting trail based on these officer’s actions as well as those already convicted are generally in a terrible position to contest things. Filing even the most basic motion isn’t going to happen.
Hence it’s gotta be done as a group lawsuit with the DA agreeing to some deal for all of them.
If even a public defender fails to file a motion based on these circumstances, the defendant would have a pretty good case for failure to properly represent, I would think. Is the public defender paid by the city? Then perhaps the city could be included in the lawsuit for damages for a failure to properly represent him.
In Massachusetts, State Chemist Annie Dookhan admitted to falsifying evidence she was supposed to be testing.
In this case, the state took it on itself to do the legwork and dismiss the cases she’d been involved with, except for a few that it deemed important enough or that they had other lines of evidence.
The thing is, the Prosecutor’s office has a limited budget, with a limited number of prosecutors and staff. That means in normal cases of some guy with a bag of drugs, they say to the defendant and his public defender lawyer, “Officer Friendly found the drugs at your place, plead guilty to possession of such and such and you’ll get such and such sentence”. And the public defender says to his client that if they go to trial the jury is going to believe the cop, so take the deal. And the defendant does. And so the wheels of justice turn.
In this case though, the defense attorney is going to say, “Wait a minute. We’re going to trial, and point out that the cop in question videotaped himself planting drugs in another case. We’re going to trial.” And then the prosecution says “Fine” and drops the case, and gets on with the other 9999 cases where the arresting officer didn’t videotape himself planting drugs. The Prosecuting attorneys would have to be pretty bored and have nothing better to do to waste their time bringing any low level drug cases to trial where this cop was involved. So a bunch of people just got a get out of jail free card.
I don’t deny that public defenders are overworked and underpaid. To the contrary. I have good reason to know just how underpaid and overworked they are.
But the notion that this translates into the kind of slapshod analysis you describe above there is not generally an accurate one, in my experience.
And who is going to file this pretty good case??? Where is the money, time, expertise going to come from?
In our state, the PDs offices are sub-minimally funded and staffed. They are overwhelmed and then some. Just showing up at a hearing isn’t guaranteed. It’s not like TV at all.
I would think that the Defense could at least succeed in deferring the trial until the key witness’s criminal trial has been completed. Or barring that, that the courts would want to somehow prevent having to re-try every one of them afterward when an appeal would almost certainly be granted.
(Or would it? Would the officers’ conviction qualify as new evidence?)
Dropping every case seems premature, as there may be other evidence. But in a case where the prosecution is counting on these guys, wouldn’t they just drop the case?
There are plenty of jailhouse lawyers filing their own appeals and (often frivolous) lawsuits. I’m not sure a lawyer would be personally exempt from liability if they were sued for negligently failing to provide sufficient defense, if they missed an obvious situation like this.
Well I’m sure the simple analysis would be - “drop everything this bunch of officers did, said, found about this case? Would we still have a case?” If they were the arresting officers who found the evidence, and it was small enough to plant - probably the case is dropped.
(I would imagine the other officers in the video who stood around and watched the principal officer plant evidence would be equally suspect, if their police reports showed they neglected to mention this detail either.)
To expand on this for laypeople, the point is that the video cannot be offered into evidence straight out. First, you (the defense) must establish the required predicate to impeach - you need the witness to testify to something which the impeachment evidence (the video) tends to disprove. If the officer admits he has planted evidence in the past, the video is irrelevant because it does not disprove anything he said.
It works the same way for any other impeachment evidence. If you have, for example, a police report in which the officer states no drugs were found at the scene, it’s inadmissible hearsay. But once the officer testifies that drugs were found, the report becomes admissible as a prior inconsistent statement and as impeachment evidence.
Right, but when the Officer admits to planting drugs in the past, there’s your reasonable doubt right there. In most cases the simple testimony of a cop that they found a bag of a white powdery substance that the lab later confirmed was Pharmaceutical X is enough for a conviction. Sure, a jury could find that the cop might be lying. But most won’t. Juries tend to believe cops unless there’s some reason to believe the cop might be lying. A videotape of this cop planting drugs, or the cop’s admission that they have planted drugs in the past is such a reason.
If the Prosecution had an unlimited budget they might go to trial even on shaky cases like these. But they don’t. Going to trial on a case where the main evidence is the testimony of your drug-planting cop means you have to skip trials on other cases that are much more likely to succeed. They normally rely on the defendants pleading guilty in small time drug cases like this, because normally the case is a slam dunk. And if you reject the plea bargain when the case is a slam dunk, then sure they’ll go to trial rather than give up because the case is still a slam dunk. When your case depends on the testimony of a cop that can be proven to have planted drugs in the past, the case is no longer a slam dunk.